Gopi, S/o. Nanu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938 CRL.A.No. 1977 of 2004 ( ) -----------------------AGAINST THE JUDGMENT IN SC 343/2003 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 01-11-2004 APPELLANT(S)/ACCUSED: -------------------- GOPI, S/O. NANU, SANTHOSH BHAVANAM, MANNAMPARA, PAZHAKULAM, KIZHAKKU MURI,, PALLICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S)/COMPLAINANT/STATE: -------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.K. PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl.A. No. 1977 of 2004** ------------------------------------------------- Dated this the 5[th] day of January, 2017 ## **JUDGMENT** The appellant is the accused in S.C. No. 343 of 2003 on the files of the Additional Sessions Court, (Adhoc) Fast Track Court-II, Pathanamthitta. The appellant was convicted and sentenced by the court below under Section 8 (2) of the Abkari Act. 2. The prosecution allegation is that on 27-11-1999 at about 12.30 p.m. the appellant was found in possession of 1 ½ litres of arrack in contravention of the provisions of the Abkari Act. 3. Before the trial Court, PW1 to PW5 were examined and Exts. P1 to P8 were marked for the Crl.A. No. 1977 of 2004 -2- prosecution besides identifying MO1. No evidence was adduced on the side of the appellant. ## 4. Heard. 5. The learned counsel for the appellant has argued that since no forwarding note was produced or marked before the Court there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the appellant is entitled to benefit of doubt. 6. In this case, no forwarding note was marked before the Court. No forwaqrding note was also available with the records transmitted to this Court which would show that no forwarding note was marked before the Court. Crl.A. No. 1977 of 2004 -3- 7. In **Prakasan and Another v. State of Kerala [2016 (1) KLD** 311] the Court held thus: “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were in court in the same produced condition in which it was seized andit reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative Crl.A. No. 1977 of 2004 -4- sample said to have been taken from the large quantity of the contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” In **Sasidharan v. State of Kerala [2007 (1) KLT 720] the** Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” In **Ravi v. State of Kerala [2011 (3) KLT 353], t** he Crl.A. No. 1977 of 2004 -5- Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. In this case, the forwarding note was neither prepared nor produced before the Court. Therefore, there is no satisfactory link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper proof condition and in the said circumstances, the appellant is entitled to benefit of doubt. 8. It is also to be noted that event though the incident in this case was on 27-11-1999, the final report filed before the Court after completing the investigation only on 23-07-2002. PW5 filed the final report before the Court. He stated that he took over the investigation of the Crl.A. No. 1977 of 2004 -6- case on 20-3-2002. It apapears from the records that PW5 recorded the statement of the witnesses only after 20-32002. No explanation has been given by PW5 as to why there was inordinate delay in conducting the investigation and filed the final report before the Court. 9. In **Krishnan H. v. State [2015 (1) KHC 822** ] long delay in conducting investigation in the absence of sufficient explanation is fatal to the prosecution. In this case, there was long and unexplained delay in conducting the investigation and filing the final report, and hence the same is no doubt, fatal to the prosecution as held in Krishnan H. (supra). The above vital aspects were not considered by the court below while appreciating the evidence. For the said reason, the conviction and sentence passed by the court below cannot be set aside and consequently, I set aside the same. In the result, this Appeal stands allowed setting aside Crl.A. No. 1977 of 2004 -7- the conviction and sentence passed by the court below under Sec. 8 (2) of the Abkari Act and the appellant is acquitted for the above said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty. ## **B. SUDHEENDRA KUMAR, JUDGE** . ani/